Editing Negligence (section)

===Duty of care===
{{Main|Duty of care}}

The legal liability of a defendant to a plaintiff is based on the defendant's failure to fulfil a responsibility, recognised by law, of which the plaintiff is the intended beneficiary. The first step in determining the existence of a legally recognised responsibility is the concept of an obligation or duty. In the tort of negligence, the term used is duty of care.<ref>{{Cite book|title=Torts In Ireland|last=Quill|first=Eoin|publisher=Gill & Macmillan|year=2014|location=Dublin|pages=19}}</ref>

The case of ''[[Donoghue v Stevenson]]'' (1932)<ref>''[[Donoghue v Stevenson]]'' [1932] AC 532</ref> established the modern law of negligence, laying the foundations of the duty of care and the [[fault (legal)|fault]] principle which, (through the [[Judicial Committee of the Privy Council|Privy Council]]), have been adopted throughout the [[Commonwealth of Nations|Commonwealth]]. May Donoghue and her friend were in a café in Paisley. The friend bought Donoghue a [[Ice cream float|ginger beer float]]. She drank some of the beer and later poured the remainder over her ice-cream and was horrified to see the decomposed remains of a snail exit the bottle. Donoghue suffered nervous shock and gastro-enteritis, but did not sue the cafe owner, instead suing the manufacturer, Stevenson. (As Donoghue had not herself bought the beer, the doctrine of [[privity]] precluded a [[law of contract|contractual]] action against Stevenson.)

The Scottish judge, [[Lord MacMillan]], considered the case to fall within a new category of delict (the Scots law nearest equivalent of tort). The case proceeded to the [[Judicial functions of the House of Lords|House of Lords]], where [[Lord Atkin]] interpreted the biblical ordinance to "love thy neighbour" as a legal requirement to "not harm thy neighbour". He then went on to define neighbour as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question."

In England the case of ''[[Caparo Industries Plc v Dickman]]'' (1990) introduced a "threefold test" for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be "fair, just, and reasonable" to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges.

In Australia, ''Donoghue v Stevenson'' was used as a persuasive precedent in the case of ''[[Grant v Australian Knitting Mills]]'' (AKR) (1936).<ref name=PC>{{Cite Bailii|litigants=[[Grant v Australian Knitting Mills]] |year=1935 |court=UKPC |num=62 |format=1 |parallelcite=[1936] [[Appeal Cases Law Reports|AC]] 85}}; {{cite AustLII|UKPCHCA|1|1935|parallelcite= (1935) 54 [[Commonwealth Law Reports|CLR]] 49 |date=21 October 1935 |courtname=auto}}.</ref> This was a landmark case in the development of the negligence law in Australia.<ref>{{cite web |url=http://www.law.uwa.edu.au/__data/assets/pdf_file/0008/1838186/Example_Development-of-law-negligence.pdf |title=Example of the Development of the Law of Negligence |website=law.uwa.edu.au}}.</ref>

Whether a duty of care is owed for psychiatric, as opposed to physical, harm was discussed in the Australian case of ''Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd'' (2002).<ref name="Tame HCA">{{cite AustLII|HCA|35|2002|litigants=Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd |parallelcite=(2002) 211 [[Commonwealth Law Reports|CLR]] 317 |courtname=auto |date=}}.</ref><ref name="Jaensch v Coffey">{{cite AustLII|HCA|52|1984|litigants=[[Jaensch v Coffey]] |parallelcite=(1984) 155 [[Commonwealth Law Reports|CLR]] 549 |courtname=auto |date=}}.</ref> Determining a duty for mental harm has now been subsumed into the ''Civil Liability Act 2002'' in New South Wales.<ref>{{cite Legislation AU|NSW|act|cla2002161|Civil Liability Act 2002|32}}.</ref> The application of Part 3 of the ''Civil Liability Act 2002'' (NSW) was demonstrated in ''Wicks v SRA (NSW); Sheehan v SRA (NSW)''.<ref>{{cite AustLII|HCA|22|2010|litigants=Wicks v State Rail Authority of New South Wales; Sheehan v State Rail Authority of New South Wales |parallelcite=(2010) 241 [[Commonwealth Law Reports|CLR]] 60 |courtname=auto |date=}};<br>see also {{cite AustLII|HCA|15|2005|litigants=Koehler v Cerebos (Australia) Ltd |parallelcite=(2005) 222 [[Commonwealth Law Reports|CLR]] 44 |courtname=auto |date=}}.</ref>